Opinion
October 11, 1988
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is affirmed, with costs.
Absent a written brokerage agreement between the plaintiffs, as broker, and the defendant, as seller, the rule of Graff v Billet ( 64 N.Y.2d 899) is inapplicable (see, Feinberg Bros. Agency v Berted Realty Co., 70 N.Y.2d 828, 830-831). The trial court correctly determined that there were triable issues of fact, inter alia, regarding the terms of the oral agreement between the plaintiffs and the defendant; whether the plaintiffs produced a buyer ready, willing and able to purchase on the seller's terms; and whether the defendant's failure to close the deal was wrongful, arbitrary or in bad faith (see, Lane — Real Estate Dept. Store v Lawlet Corp., 28 N.Y.2d 36, 44; Penzotti v Broda Mach. Co., 37 A.D.2d 340, 342; Kahn Assocs. v Maidman, 69 Misc.2d 90, 93, affd 38 A.D.2d 798, affd 30 N.Y.2d 831). The subsequent letters from the broker to the seller presented further triable issues as to whether the broker and seller intended to make the commission contingent upon closing or whether they agreed that the commission was already earned but that payment was deferred until the time of closing (see, Feinberg Bros. Agency v Berted Realty Co., supra, at 831). Thompson, J.P., Kunzeman, Eiber and Sullivan, JJ., concur.